Time Columnist Joe Klein Gets Wiretapping Debate Wrong a Third Time

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Time Columnist Joe Klein Gets Wiretapping Debate Wrong a Third Time

For most people the third time is the charm, but in the case of Time columnist Joe Klein writing about proposed changes to the nation's spying laws, even his third draft gets it wrong.

After being called to task last week for writing a dangerously misinformed column on changes to the nation's spying laws, Klein concedes that he might have made a mistake when he said a House bill would "require the surveillance of every foreign-terrorist target's calls to be approved by the FISA court, an institution founded to protect the rights of U.S. citizens only." But then again, he thinks maybe he didn't.

I may have made a mistake in my column this week about the FISA legislation passed by the House, although it's difficult to tell for sure given the technical nature of the bill’s language and fierce disagreements between even moderate Republicans and Democrats on the Committee about what the bill actually does contain.

In his two follow-up blog posts, Klein compounds his errors and valiantly argues he is right that the Dems are coddling terrorists because a bill passed by the House says that if the NSA targets a foreigner or group of foreigners who will likely communicate with someone inside the United States, the spies need to get court approval.

Klein says this gives foreign terrorists the same rights as Americans.

But this restriction is only true when the nation's spies are wiretapping fiber optic cables, telecom switches and web mail providers INSIDE the United States.

Klein continues to miss this most crucial distinction in the debate, which is why THREAT LEVEL, paraphrasing Klein's column, continues to believe that Klein is well beyond stupid. He's dangerous.

Outside the United States, such wiretapping isn't even defined as surveillance, and it never has been.

If the NSA is listening in on cell phone calls in Iraq, they don't need a warrant nor do they need court approval of their techniques.

If the Iranian cell phone user they are listening in on calls an American, they don't have to stop and get a warrant. Instead they follow long-established minimization procedures that disguise the American's name, unless there's a good reason not to.

Wiretapping inside America is the whole reason various bills are being debated. After a secret spying court decided last spring that the government's wiretapping inside America without having particularized warrants was illegal, the Administration began pushing for new powers from Congress. The administration then scared Congress into rush passage of a bill that massively expanded the government's spying powers outside and inside the United States, without any real expansion of oversight.

But Klein can't grasp this simple point, which may be why he defends himself by saying that bills are hard to read and details are unimportant:

We are talking about relatively obscure and unimportant technical details and my larger point—that a bipartisan, veto-proof House FISA was possible, but was opposed by the Democratic leadership—is still true.

The House's so-called Restore Act AMENDS the Foreign Intelligence Surveillance Act, which regulates wiretapping of U.S. persons (citizens and visa holders) inside the United States.

The Restore Act does not replace FISA.

Thus when one reads the word "surveillance" in the bills or their summaries, you must keep in mind that FISA doesn't consider targeting foreigners or drift net listening over the Pacific as "surveillance" so long as the ears are outside the United States.

So when you read the word "surveillance" in the Restore Act or its summary, you have to remember that FISA has a complex definition of surveillance, that largely boils down to surveillance = 1) getting the contents of American's communications regardless of where the listening happens or 2) listening-in from locations on American soil (with some exceptions for radio communications).

Everything else? Not surveillance.

The larger point here is that Klein thinks the Restore Act restricts traditional government surveillance powers, when it actually expands them.

For instance, the Restore Act says that the government has get a 'basket warrant' to listen in on groups of foreign bad guys if they might communicate with U.S. persons. But you have to remember that's only about wiretaps inside the United States.

So if you read the Democrat's summary of the Restore Act, it says it "Creates a Program of Court Authorized Targeting of Non-U.S. Persons Outside the United States." That sounds really restrictive unless you think of it as "creates a program of court-authorized orders to domestic communication companies to wiretap non-Americans outside the United States."

In short, the Restore Act is about what the NSA can do with or without court approval inside AT&T's phone switches, on Comcast's internet lines, on Yahoo's web mail, on AOL's Instant Messenger and on Ebay's Skype.

It's not about what the NSA can do by wiretapping underseas fiber optic cables or bribing their way to getting taps on the cell phone towers in Syria.

Under the Restore Act, the NSA could order Gmail to turn over all email communications that go from one foreign IP address to another foreign IP address, without getting a court order. The NSA could also order AT&T to let it build a spying room that would let it monitor the company's massive internet backbones, where the NSA's equipment would filter out communications that it believed to belong to Americans.

Here's the language that lets them do so:

Notwithstanding any other provision of this Act, a court order is not required for electronic surveillance directed at the acquisition of the contents of any communication between persons that are not known to be United States persons and are reasonably believed to be located outside the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

That's a massive expansion of traditional government surveillance powers inside the United States.

By comparison, the Senate Intelligence bill give the Executive branch even more power to turn the nation's communication infrastructure into a giant spying machine, and has less court oversight than the House bill. (It adds more oversight than the Protect America Act and slightly curtails the powers handed over in that bill.)

Yet Klein says the Senate bill, with its expansive domestic spying powers and immunity for the governement's partners in a secret and likely illegal spying operation, "could have set an important, if belated, precedent for the limits of executive power."

Passing a virtual surveillance wish list that has a bit more oversight than the president would like and dismissing legal challenges to the executive branch's unilateral targeting of Americans for wiretapping strikes a blow for limiting executive power?

Who gave this man a column?

Finally, Klein's continues to bungle how the Senate Intelligence bill would give immunity to telecoms who helped with the Bush administration's secret wiretapping of Americans. (The House bill has no provisions, and the Senate bill may no longer either because of the Judiciary Committee).

In his first blog post about his column, Klein writes that immunity would be "selective immunity to those telecoms who can provide written proof that they were acting in response to a direct order from the government. That seems fair to me."

In fact, it does do that – but if telecoms had such orders, they could have already shown them in secret to the judge and be out of their legal mess already.

Klein misleads his readers about the breadth of immunity by omitting that the immunity provision also applies to companies who simply got requests for help, not legal orders directing them to turn over billions of call records. No one serious thinks the companies should be sued if they got a legal order.

Remember that former Qwest CEO Joseph Nacchio said he repeatedly asked for such an order before helping the NSA, but the government didn't want to do so. Such an order could have put the administration on the hook for a program that a Republican appointee lawyer later found to be without any sound legal basis - i.e. illegal.

In his second post, Klein mostly gets it right, describing the same provision as "immunity for telecoms who allowed access to information, after receiving a direct written request from the government, in a way that would be legal under the new law."

Actually what the Attorney General has to show a judge is 1) that the government requested that the telecoms give access to their domestic networks or call records, and 2) that the government told the telecoms that the government thought its own spying program was legal. The note doesn't have to say that the government believed that the telecom's participation was legal.

Klein now has two blog posts and one column (printed in Time magazine) that are all shot through with errors.

Collectively, Klein's postings paint a deceiving caricature of people who are concerned about letting the government turn the nation's telecommunication systems into giant microphones – something that was explicitly rejected in the wiretapping compromises that followed the excesses of Nixon, the CIA and J. Edgar Hoover.

Perhaps Time's correction writer is out with an extended tryptophan Thanksgiving coma, but when she gets back, she's got some serious work to do.